Chris Musillo on Nurse and Allied Health Immigration

The USCIS will be issuing Guidance for all PT/OT cases that were denied as a result of the misapplication of a Masters Degree standard in PT and OT cases. The Guidance should be issued shortly and will provide the process for having those cases Reopen and approved in an expeditious manner.

I am at the AILA annual conference this week and so I may not post this week unless something major happens. I will post a summary of interesting notes after I return.

I did have dinner last night with my fellow ILW.com bloggers and also met up with the President of ILW.com. For those of who don't know, my blog is reproduced in real time at ILW.com on this page.

ILW.com remains the premier information source on the internet. For immigration lawyers who follow my blog and want to learn more about ILW.com, ILW has a room on the third floor of the conference center at the Venetian. ILW has an extensive library of resources.

I am pleased to report that we have been successful in the goal of or PT/OT lawsuit! As you can see from this Memorandum, going forward the USCIS will approve all PT/OTs provided that the beneficiary holds at least a Bachelors degree.

Later today or tomorrow, the USCIS is going to formally release this Memorandum. (UPDATE: It has been posted). An advance copy was sent to us last night by the DHS' lawyer in our lawsuit. The Memorandum says exactly what we hoped it would: if a PT/OT (or any healthcare worker) holds a valid unrestricted license, then the USCIS adjudicating officer should not look past the license and "the beneficiary will be considered to meet the qualifications to perform services in a specialty occupation."

The Memorandum also clarifies what happens if the worker is not in possession of a state license. The USCIS adjudicating officer must first determine the state requirements. Then if the only thing prohibiting the worker from obtaining the license is a SSN or valid immigration status and/or being physically present in the US, then the USCIS should approve the case for one years' time.

We knew the law was on our side and so it is good to see the USCIS make the proper determination. All cap-subject H-1 cases should be approved, as we'd hoped when we started this.

Last week Reps. Wexler (D-FL) and Sensenbrenner (R-WI) introduced the Emergency Nursing Supply Relief Act (HR 2536). While this is but one step in the legislative process, it is a critical first step. The American system has many built in "checks and balances" designed to insure that legislation is aptly considered.

The Bill will be referred to the Committee on the Judiciary. That Committee may refer it to subcommittee(s). This process is at the complete discretion of the leaders of that committee.

After the Committee has passed the bill, the bill can get offered for a vote to the House of Representatives, which is the lower American legislative body. Whether a vote is taken or not is subject to the Speaker of the House. If approved by the House, the Senate must then consider the legislation.

Upon approval from both the House and the Senate, the bill is immediately offered to the President who will almost certainly sign the bill into law. From time to time, the President can veto bills that have been passed by the Senate and the House, but this is a controversial political move and not one likely to be used against the ENSRA.

As you can tell the process is lengthy. For smaller legislation it is often difficult to clear all of the hurdles in one two-year Congressional term.

However, there is a second "shortcut" process. A bill may be attached to a bigger piece of legislation. This is the process that was used in 2005 to get the Schedule A EX visa bill passed. The Schedule A EX visa bill was attached to the 2005 Emergency Supplemental Appropriations Act.

The process of attaching a smaller bill to a larger one has a formal process of an amendment being offered and accepted. The formal process is, however, secondary to the informal process, which includes much behind the scene dialoging with powerful political leaders.

To some degree, the informal process began three years ago when it became apparent that the retrogression would resurface. The efforts have continued.

If you would like to aid in this process, and it is imperative that everyone who has a vested interest in the process does so. Please take the following steps:

If you are a hospital, long term care facility, please email your Representative. Here is a link to the Representative list. Here is the template email that you can send.

If you are a staffing company, please email your Representative. But use this template email.

If you are an international nurse or Physical Therapist, then please contact your sponsoring hospital and/or staffing company and make sure that they are sending in these emails.

If you are an US citizen who believes that increased funding for domestic nurse schooling funded by a short-term visa program for these healthcare workers, then please send in this email to your Representative.

Yesterday Rep. Wexler (D-FL) introduced the Emergency Nursing Supply Relief Act (HR 2536). The preliminary copies that I have seen show the bill to be largely similar to last term's HR 5924. Once the GPO officially publishes the bill, I will provide a link and explain what the next steps are/ timing / etc.